Editor’s note: The following article was submitted by members of Student Speech: Rights and Regulations, a student-led seminar at the University of Minnesota Law School. The co-authors are listed below.

Seven years ago, Minnesota expanded its antibullying statute to include bullying in “electronic” form. Twitter was months old, and Facebook had only recently become available to all teens. At the time, our legislators — as they do now with the proposed Safe and Supportive Minnesota Schools Act — recognized that students were increasingly communicating online.

Today, social media use is more widespread than ever. A May 2013 Pew study found that over 94 percent of teens use Facebook. Given the volume of teen-to-teen communication that occurs online, the challenge for the Legislature is to draft a law that prevents bullying behavior while also protecting freedom of expression. To that end, before the Senate votes on a sweeping change in our antibullying law, there must be meaningful debate about the act’s regulation of off-campus, electronic student speech.

Over the last several months, our Student Speech class at the University of Minnesota Law School has examined free-speech rights and regulations in public schools. We’ve collectively spent hundreds of hours reviewing the law, examining policy, and meeting with school employees, litigators and bullying experts from around the country. Through all of this, one thing is clear: There is general agreement that public school students have First Amendment rights, but little consensus on how to address student bullying that occurs online at home.

In its current form, the act empowers administrators to discipline students for speech that occurs away from school, insofar as the speech “substantially and materially disrupts student learning or the school environment.” Aside from the absence of statutory guidance on what might qualify as a sufficient disruption, this language also raises the issue of whether it is constitutional for an antibullying law to reach beyond the physical boundaries of the school.

To date, no U.S. Supreme Court case directly supports the proposition that public schools can discipline off-campus, online student speech. In fact, case law suggests the opposite: Chief Justice John Roberts recently opined that offensively lewd and indecent student speech is fully protected when communicated off-campus in a public forum.

But even if the Supreme Court were to rule that school regulation of off-campus, electronic speech is constitutional, one should still consider whether the regulation is good policy.

As written, the Safe and Supportive Minnesota Schools Act could “chill” the exercise of traditionally protected speech, discouraging students from voicing political opinions, religious beliefs or controversial viewpoints for fear of punishment by administrators. For example, a school Day of Silence calls much-needed attention to the epidemic of anti-LGBTQ bullying, harassment and suicide. The act ought to — and does — protect a public school student’s participation in such an event. On the other hand, a minor should not have to fear school discipline when expressing a different sentiment on LGBT issues online, for example, a Facebook photo of a “Be Happy, Not Gay” T-shirt, even if the message disrupts a classmate’s learning at home.

As the Supreme Court has acknowledged, “[o]ne of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”

Moreover, parents should be concerned about public-school monitoring of a child’s off-campus social media activity. Around the country, school districts are paying companies like Safe Outlook, UDiligence and Geo Listening to track students’ public social media activity 24/7. Last summer, a suburban Los Angeles school district made headlines after paying $40,500 for this service. Our legislators should be wary of round-the-clock social media monitoring, especially given schools’ limited resources.

To be clear, we oppose bullying and bullying-related violence, and we commend the Legislature’s efforts to protect all students through this long-awaited change in law. But in its current form, the Safe and Supportive Minnesota Schools Act could lead to overreaching, which would cause trouble for administrators, students and parents alike.

The co-authors are: Ian Welsh, Allison Whelan, David Tibbals, Katy Wendt, Jordon Greenlee, Matthew Lawlyes, Brittney Miller, Heather Gillund, Nicholas Rischiotto, Travis Schulze and Francis White. This article represents the viewpoint of members of Student Speech: Rights and Regulations, and is not intended to speak on behalf of the University of Minnesota.

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